Delta Holdings Nigeria Limited & Anor V. Pcm Techino Engineering Limited (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

P. A. GALINJE, J.C.A. (Delivering the Leading Judgment)

In it’s amended statement of claim dated 6th December, 2004 and filed on the same date, the Respondent herein claimed against the appellants at the Rivers State High Court, jointly and severally the sum of N26,998,465.75 (Twenty Six Million, Nine Hundred and Ninety Eight Thousand, Four Hundred and Sixty-Five Naira, Seventy-Five Kobo) being outstanding debt owed to the respondent by the appellants in respect of the completed and submitted bill of designing, costing and submitted two models of the National Museum, Olombini Oil Field Ogbia Town, Bayelsa State.

In addition, the respondent claimed 10% interest per annum on the total sum claimed from 29th of October, 1998 till judgment and the same rate of interest on the judgment sum until same is finally liquidated.

Parties had joined issues when the appellants filed their statement of defence on the 7th of March, 2001.

The learned trial judge, Akpughunum J. Set the case down for trial which commenced on the 19th October, 2006. Respondent herein called only one witness and tendered 24 exhibits in proof of its case. The Appellants who were defendants at the lower court abandoned their defence when they and their counsel failed to put up appearances even though they were severally served. This is what the learned trial judge said at pages 22-23 of the record of Appeal thus:-

“The records of the court and the processes filed therein, clearly showed that the defendants through their counsel filed their joint statement of defence and appeared in court to represent them, before both defendants and counsel abandoned their case, and they deliberately refused to attend court inspite of the several hearing notices served on them and their counsel to ensure their attendance to (sic) court to defend their case. Their failure to attend court to cross examine PW1 and enter their defence, led to their being foreclosed from so doing.”

It is on the basis of the reason reproduced above and a host of other reasons the learned trial judge in his reserved and well considered judgment delivered on the 5th day of June, 2007, granted all the reliefs sought by the respondent.

The appellants were unhappy with the judgment of the lower court. Being aggrieved, they brought an application at the lower court dated 25th June, 2007 and filed on 26/6/07 praying the court to set aside the judgment aforesaid and make an order restraining the respondent from taking any step or action or further step or action to enforce the judgment of the court, the motion was heard and subsequently dismissed on the ground that the judgment delivered on the 5/6/2007 being on the merit and final, the only remedy open to the applicants is an appeal as the lower court lacked the competence to grant the relief sought by the appellants.

The appellants are further aggrieved by the ruling of the lower court and have therefore brought this appeal. Their notice of appeal at pages 72 – 74 of the record of this appeal dated 18/12/08 and filed on the 19/12/08 contains three grounds of appeal.

Parties filed and exchanged briefs of argument Mr. Golden Awi learned counsel for the appellants formulated two issues for determination of the appeal. These issues are reproduced hereunder as follows:-

1. Whether the judgment entered in suit No.PHC/901/2000 on the 5th day of June, 2001 was reached on the case that was heard on its merit.
2. Whether the circumstance of the application to set aside the judgment in suit No.PH/901/2000 is worthy of sympathetic consideration.”

For the respondent, one issue only was formulated for determination of the appeal, and it reads:-

“1. Was the learned trial court in error when it held that its judgment delivered on the 5th of June, 2007 being a judgment on the merit and set same aside.”

Appellants’ reply brief is dated 15th day of June, 2009 and filed on this 17th June, 2009.

Having read through the record of appeal and the briefs of argument in this appeal, I am of the firm view that the sole issue formulated by the respondent has adequately covered the field. I will therefore adopt the said issue in the determination of this appeal.